CNS Occasional Papers: #3

Nonproliferation Regimes At Risk

CHALLENGES TO THE CHEMICAL WEAPONS CONVENTION

by Jonathan B. Tucker

The 1993 Chemical Weapons Convention requires member states to destroy existing stocks of chemical weapons (CW) within ten years and bans their future development, production, stockpiling, transfer, and use. Incorporating extensive verification measures, the CWC is the first treaty to ban an entire category of weapons of mass destruction under strict international inspection. After two decades of negotiation and preparation, the Convention entered into force on April 29, 1997; it currently has more than 125 parties, including the United States, Russia, China, Iran, Japan, and all members of the European Union. Today the CWC is in a critical phase of implementation that could either strengthen or significantly weaken the CW nonproliferation regime.

A current problem with the CWC is its lack of universality. Several known or suspected chemical weapons possessors remain outside the treaty regime, including Egypt, Israel, Libya, North Korea, Syria, and Yugoslavia. Taiwan’s status is also problematic, because it is not recognized by the United Nations and hence is unable to become a state party to the CWC. Even without universal adherence, however, the Convention should help to slow and even reverse chemical proliferation by isolating the relatively small number of countries that refuse to join, limiting their access to precursor chemicals, and bringing international political and economic pressures to bear if these states maintain their CW programs. Further, although disarmament treaties are binding only on sovereign states and are not designed to address the problem of sub-state terrorism, the CWC embodies international norms that are accepted in practice by at least some terrorists. Were chemical weapons to proliferate widely among states, their acquisition and use by terrorists would become much more likely.

STATUS OF CWC IMPLEMENTATION

The international agency established in The Hague, the Netherlands, to oversee CWC implementation is known as the Organization for the Prohibition of Chemical Weapons (OPCW). It has a staff of about 500, including some 200 inspectors trained and equipped to inspect military and industry facilities in member states throughout the world. By the end of March 1999, OPCW inspection teams had conducted 439 inspections in 30 countries. For an international organization its size, the OPCW has a modest budget of about $70 million a year, roughly equivalent to the cost of two modern fighter jets.

Several CWC member states—including China, France, India, Japan, Russia, South Korea, the United Kingdom, and the United States—have declared chemical stockpiles and/or production facilities and are proceeding to eliminate them. One benefit of the treaty is that it has encouraged countries that previously denied possession of chemical weapons, such as India and South Korea, to acknowledge their CW programs as the first step in treaty compliance. The level of openness is not consistent, however. For example, Iran’s declaration admits that it once possessed chemical weapons but denies a current CW capability.

WATERING DOWN THE REGIME

Several decisions by the Preparatory Commission that met to develop detailed verification procedures prior to the CWC’s entry into force, and more recently by the Conference of States Parties (the main decision-making body of the OPCW), have tended to diminish the effectiveness of the CWC verification regime. These decisions have upset the delicate balance in the treaty between the rights of the OPCW inspectors and the rights of the inspected state, creating loopholes for potential cheaters. For example, although the scope of the CWC’s basic prohibition covers any toxic chemical intended for use as a weapon, the Conference of States Parties has ruled that analytical devices employed by OPCW inspectors may be programmed to detect only the limited number of chemicals listed in the treaty and their degradation products. As a result, a determined violator might produce an unlisted toxic chemical in a bid to circumvent the CWC.

Other rules approved by the Conference of States Parties enable member states to confiscate and retain any piece of analytical equipment that host-country officials believe has not been satisfactorily cleared of proprietary data unrelated to treaty compliance, and to review inspectors’ notebooks. According to CW analyst Amy Smithson, "These invented rights ... offer [CWC] members means to evade detection by expropriating evidence that could document their own noncompliance." Further, a widespread tendency by member states to overclassify the data contained in declarations and inspection reports has complicated the work of the OPCW inspectorate and made it nearly impossible for individual countries to reach their own compliance judgments. The US delegation should take a more active role in resisting such efforts to water down the regime.

PROBLEMS OF RUSSIAN CW DESTRUCTION

The Russian Federation, which possesses the world’s largest CW stockpile (totaling some 41,000 metric tons) is in the throes of a serious financial crisis and lacks the funds needed to meet its CWC obligations. Russia ratified the treaty in December 1997, and made its initial declaration within the required 30-day period. By August 1998, the OPCW had conducted initial inspections of all 24 former CW production facilities and seven storage facilities that Moscow had declared. Nevertheless, Russia faces daunting financial, political, and environmental challenges in destroying its vast chemical stockpile.

According to the timetable specified in the CWC, Russia must have eliminated one percent of its chemical weapons (about 400 tons) by the end of April 2000; 20 percent by 2002, and all 40,000 tons by 2007. Given the severe financial crisis in Russia today, however, little government money is available for CW destruction, and foreign assistance remains limited. Russian experts believe that it will be impossible for Russia to meet the CWC deadlines, and that it will take at least 25 to 30 years to eliminate the entire stockpile. For this reason, some members of the Russian State Duma (lower house of parliament) have urged the Russian government to withdraw from the treaty.

For the past several years, US government assistance to the Russian chemical demilitarization effort has focused on the design and construction of a pilot nerve-agent destruction facility at Shchuchie, one of seven CW storage sites in Russia. This project was intended to "jump-start" the entire destruction program. In October 1999, however, the US Congress voted to eliminate all $125 million slated for the Shchuchie facility in the fiscal year 2000 Defense Authorization Bill. If the deleted funding is not restored, the Russians may have no choice but to withdraw from the CWC, dealing a serious and perhaps fatal blow to the CW nonproliferation regime. Should Congress fail to act, an alternative means of financing the Russian CW destruction program would be for Western creditors to grant partial forgiveness of Moscow’s massive foreign debt, with the stipulation that comparable funds be allocated for the elimination of chemical weapons.

THE UNITED STATES: SETTING A BAD EXAMPLE

The United States was a leader in negotiating the CWC but has set a poor example during its implementation. To date, the United States remains in "technical violation" of the treaty because of a failure to submit declarations for chemical industry facilities and to host OPCW inspections at these sites. US industry declarations have been delayed by congressional foot-dragging in passing the implementing legislation needed to apply the CWC to domestic chemical companies, and by a dispute between the Departments of State and Commerce over which agency should have the lead role in coordinating industry declarations and inspections.

With US chemical companies yet to receive their first OPCW inspections, economic competitors that have met their CWC obligations, such as Germany and Japan, are increasingly irritated by what they see as an unfair commercial advantage accruing to the US industry. Yet because the Clinton administration has made no effort to expedite the promulgation of the necessary regulations, the U.S. industry declarations are likely to trickle in over a period of several months.

With respect to OPCW inspections at US military sites, the Department of Defense has been criticized for narrow, legalistic, and at times confrontational behavior on the part of inspector escorts, and for failing to deliver equipment and training courses promised to the OPCW. Even more troubling, the US implementing legislation passed in October 1998 contains three unilateral exemptions and restrictions: (1) a ban on allowing OPCW inspectors to remove samples collected at US chemical sites for analysis at certified laboratories outside US territory; (2) a waiver enabling a future US president to block a CWC challenge inspection on national security grounds; and (3) a provision limiting the scope of US chemical industry sites subject to inspection. If allowed to stand, these unilateral provisions will create loopholes that could be exploited by would-be cheaters, undermining the CWC verification regime. Congress should pass additional legislation repealing such exemptions at the earliest opportunity. Until Washington comes into full technical compliance with the CWC, it will be in a weak position to criticize more serious treaty violations by other states.

THE PROBLEM OF ENFORCEMENT

Closely related to CWC verification is the problem of enforcement. Although all arms control treaties rely on the self-interest of the parties and the pressure of world public opinion to restrain would-be violators, moral restraints by themselves may not be sufficient. Without a credible threat of economic or even military sanctions in response to a persistent pattern of violations, the CWC will never play a truly effective role in containing and reversing the spread of chemical weapons. Iraq’s resort to chemical warfare during the Iran-Iraq War of the 1980s in blatant violation of the 1925 Geneva Protocol, and its systematic defiance of the United Nations Special Commission during the 1990s, indicate a continual need to maintain, institutionalize, and enforce nonproliferation regimes if these legal instruments are to retain their effectiveness.


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